New DfE guide on school exclusions

May 3rd, 2012 by James Cornwell

The DfE has published Exclusion from maintained schools, Academies and pupil referral units in England: A guide for those with legal responsibilities in relation to exclusion (“the Guide”). From September 2012 this will replace the existing statutory guidance, Improving behaviour and attendance: guidance on exclusions for schools and Pupil Referral Units (September 2008) (“the Guidance”).

Consistent with DfE’s aspiration to reduce the size of statutory guidance aimed at schools, the Guide weighs in at a slender 34 pages compared to the 80 pages of its predecessor. This reduction is principally achieved by removing the various model letters contained in the previous Guidance and expressing the guidance in a more succinct and focussed manner. We shall, perhaps, see whether in the coming years the page count starts to creep back up again. The substantive sections of the Guide are each split into two sections: “a guide to the law”, which explains the primary legislation (principally the new section 51A of the Education Act 2002) and regulations made under it, and a statutory guidance section. The Guide is addressed to head teachers, governing bodies, local authorities, Academy Trusts, independent review panel members and clerks and “SEN experts”. They must have regard to the statutory guidance parts of the Guide, i.e. should follow it unless there is a good reason not to in a particular case.

Although the statutory underpinning of the exclusion regime is now section 51A of the 2002 Act and the Guide obviously reflects that, much of the statutory guidance will look broadly familiar to those used to the 2008 Guidance. A few examples are:

  • permanent exclusion should only be used as a last resort, in response to serious or persistent breaches of the school’s behaviour policy; and where allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school (para.15);


  • headteachers should, as far as possible, avoid excluding permanently any pupil with a statement of SEN or a looked after child (para.22);


  • the governing body in considering an exclusion should have regard to the interests and circumstances of the excluded pupil and the interests of other pupils and people working at the school (para.60).


Two of the most significant differences between the Guide and its predecessor concern Independent Review Panels (“IRPs”) and “SEN experts”. IRPs replace Independent Appeal Panels. The remedies that an IRP can impose are limited to recommending reconsideration of a permanent exclusion by the governing body or quashing the exclusion and directing a reconsideration. These appear to involve the IRP in two quite distinct exercises. The IRP may only quash and direct reconsideration if it considers the decision flawed by reference to “the principles applicable in an application for judicial review” (para.132), which are explained to be illegality, irrationality and procedural impropriety (see paras.148-149). Presumably these could also (in the appropriate case) include less traditional, but now recognised grounds for judicial review, such as breach of legitimate expectation. In determining that the exclusion decision should be quashed the IRP may only consider the evidence that was actually before the governing body or which would or should have been available had the governing body acted reasonably (para.135). If the IRP does not consider that the decision should be quashed, it may nonetheless in the light of any lesser procedural defects or the evidence recommend the governing body reconsider the case (para.135). The IRP can receive and consider new evidence and indeed it is expected that those involved in the incident leading to exclusion will give evidence (see paras.108 and 134). The IRP can take account of such evidence when deciding whether to recommend reconsideration. IRPs will have to be on their toes as to which evidence falls into which category and which test they applying at what stage of their reasoning.

If the IRP quashes the exclusion and directs a reconsideration, that is binding on the governing body. But, of course, the governing body is not obliged following reconsideration to reinstate the pupil. The IRP does, however , have something of a stick in the form of a power to order that in the event of the pupil not being reinstated the school pay the local authority a sum of £4,000 in addition to any funds that move with the excluded pupil (see para.163).

There is an interesting question as to whether the new powers of the IRP would amount to an adequate alternative remedy such as to persuade the Administrative Court to decline to grant permission if a parent or pupil sought to challenge the outcome of any governing body reconsideration. If, for example, the IRP quashes an exclusion because the governing body has simply acted outside its powers (eg. because on any view the pupil was not excluded on disciplinary grounds) and the governing body reconsiders and simply makes the same unlawful decision again, there would seem to be a strong likelihood that the Administrative Court would be willing to intervene. Similarly, if the IRP hears compelling new evidence that wholly undermines the exclusion and recommends a reconsideration and if the governing body then declines to reconsider, there may be an issue as to whether the governing body has unlawfully failed to take account of a relevant consideration.

The SEN expert’s role is described at paras.155-158 of the Guide. It is said to be “analogous to an expert witness, providing impartial advice to the [IRP] on how special educational needs might be relevant to the exclusion”. The SEN expert should focus on whether the school’s policies which relate to SEN, or the application of these policies in relation to the excluded pupil, were legal, reasonable and procedurally fair and, if not, the possible contribution that this could have made to the circumstances of the pupil’s exclusion. The SEN expert may also (where the school does not accept that the pupil has SENs) express a view on the school’s approach to the identification of any special educational needs that the pupil may potentially have, and any contribution that this could have made to the circumstances of the pupil’s exclusion. A SEN expert must be appointed if the parents request one (even if the school does not recognise that the pupil has SENs) (see paras.117-121). Paragraphs.122-125 give guidance on appointing a SEN expert.